Module 7-9 - Property Offenses, Defenses, Offenses Involving Judicial Procedure Flashcards
larceny
(1) a taking
(2) and carrying away (asportation)
(3) of tangible personal property
(4) of another with possession
(5) by trespass (without consent or consent induced by fraud)
(6) with the intent to permanently deprive that person of their interest in the property
asportation
slightest movement of the property
possession of property
if D had possession of the property at the time of the taking, the crime is not larceny (could be embezzlement)
custody vs. possession of property
Possession –> D has discretionary authority of the property
custody –> D has only limited authority over the property
bailees
generally has possession only (embezzlement); but if they “break the bulk” of the packaging and take something, it is larceny
intent to permanently deprive
has to be present at the time that the property is taken
larceny: insufficient, possibly sufficient, and sufficient intent
insufficient: D believes that the property that they have taken is theirs, or they only intended to borrow it
possibly sufficient: D intends to the pay for the goods (if the goods were not for sale) or intends to collect a reward from the owner (if there is no intent to return the goods absent a reward)
sufficient: intent to create a substantial risk of loss, or intent to sell or pledge the goods to the owner
abandoned, lost, or mislaid property
larceny can occur with lost or mislaid property (ex. delivery by mistake), but NEVER with abandoned property
continuing trespass and larceny
D wrongfully takes the property WITHOUT the intent to permanently deprive and later decides to keep the property, D is guilty of larceny IF THEY DECIDE TO KEEP IT
if original taking WAS NOT wrongful, and D later decides to keep it, there is no larceny
embezzlement
(1) fraudulent
(2) conversion
(3) of personal property
(4) of another
(5) by a person with LAWFUL POSSESSION of that property
INTENT: intent to defraud
larceny vs. embezzlement
Embezzlement: D misappropriates property while it is in their RIGHTFUL POSSESSION
Larceny: D misappropriates property NOT in their possession
If D intends to restore the exact property taken, is it still embezzlement?
NO
If D intends to restore similar or substantially identical property, is it still embezzlement?
YES; even if it was money that was initially taken and other money - of identical value - that they intended to return
Embezzlement IS/IS NOT committed if the conversion is pursuant to a claim of right in the property.
IS NOT
false pretenses
(1) obtaining TITLE
(2) to personal property of another
(3) by an intentional false statement of a past or existing fact
(4) with the intent to defraud the other
What is required for false pretenses?
MISREPRESENTATION; victim must be ACTUALLY DECEIVED or act in reliance on a misrepresentation and must be a major factor
Majority (MPC): any false representation suffices, including a false promise to perform in the future
Minority: if related to a past or present fact, and false promises to do something in the future, even without present intent to perform is NOT SUFFICIENT
larceny by trick vs. false pretenses
if the victim is TRICKED by a misrepresentation of fact into giving up mere CUSTODY OR POSSESSION of property, then the crime is LARCENY BY TRICK
if the victim is tricked into GIVING UP TITLE, the crime is false pretenses
robbery
(1) taking
(2) of personal property of another
(3) from the other’s person or possession
(4) by force or threats of immediate death or physical injury
(5) with the intent to permanently deprive them of it (specific intent)
larceny vs. robbery
robbery requires that D use force or threats to obtain or retain victim’s property
extortion
the corrupt collection of an unlawful fee by an officer under the color of office (blackmail); obtaining property by means of threats to do harm or to expose information
property need not be obtained
extortion vs. robbery
extortion –> threats may be of future harm and the taking does not have to be in the presence of the victim
robbery –> threats have to be for immediate harm and D has to actually take the property
receipt of stolen property
(1) receiving possession and control
(2) of “stolen” personal property
(3) KNOWN TO HAVE BEEN OBTAINED in a manner constituting a criminal offense
(4) by another person
(5) with the intent to permanently deprive the owner of their interest in it
property must be “stolen” at the time that D receives it
forgery
(1) making or altering
(2) a writing with apparent legal significance
(3) so that it is false
(4) with the intent to defraud
fraudulently obtained signature of another
if D fraudulently causes a third person to sign a document that the third person did not realize that they are signing, A FORGERY HAS BEEN COMMITTED; if the third person realizes that they are signing the document, a forgery has not been committed even if the person who signed it was induced by fraud
uttering a forged instrument
(1) offering as genuine
(2) an instrument that may be the subject of forgery and is false
(3) with intend to defraud
burglary
(1) a breaking
(2) and entry
(3) of a dwelling
(4) of another
(5) at nighttime (CL only)
(6) with the intent to commit a felony therein
burglary: breaking
not a breaking for a person to walk through a wide open door; is a breaking if they push the interior door to another room
constructive “breaking”
breaking by fraud or threat
burglary: entering
any part of the body crosses into the structure
burglary: dwelling house of another
cannot be a barn or a commercial structure; has to be a house
burglary: intent to commit a felony therein
must exist AT THE TIME of the breaking and entering
arson (CL)
(1) malicious
(2) burning
(3) of the dwelling
(4) of another
MPC: includes damage from explosion; includes commercial structures
INTENT: none, malice (reckless disregard of obvious risk that structure would burn)
Is scorching sufficient to establish arson?
NO; charring is
CL houseburning
(1) a malicious
(2) burning
(3) of one’s OWN dwelling
(4) if the structure is situated either in a city or town, or so near to other homes as to create a danger to them
insanity tests
(1) M’Naughten
(2) irresistible impulse
(3) Durham/New Hampshire
(4) ALI/MPC
M’Naughten test
D is entitled to acquittal if:
(1) disease of the mind
(2) caused a defect of reason
(3) such that the D lacked the ability at the time of their actions to either KNOW OF THE WRONGFULNESS of their actions or UNDERSTAND THE. NATURE AND QUALITY of their actions
Irresistible Impulse
D entitled to acquittal ONLY IF b/c of mental illness, they were UNABLE TO CONTROL their actions or conform their conduct to the law
Durham (New Hampshire)
D entitled to acquittal if crime was the product of their mental illness (broadest)
ALI/MPC Insanity
D entitled to acquittal if they had a mental disease or defect and as a result, they LACKED SUBSTANTIAL CAPACITY to either:
(1) appreciate the criminality of their conduct; or
(2) conform their conduct to the requirements of law
majority rule for insanity
D prove insanity by preponderance of the evidence
minority rule/MPC for insanity
prosecution prove that D was sane beyond a reasonable doubt
federal court rule for insanity
D prove insanity by clear and convincing evidence
pretrial psychiatric examinations
if D does not raise insanity issue, they can refuse exam
if D DOES raise insanity issue, they CANNOT refuse exam
intoxication
can be raised whenever intoxication negates one of the elements of a crime (specific intent only)
bar examiners presume that all defendants who commit a crime while intoxicated were _______________ intoxicated
voluntarily
involuntary intoxication as a defense to ALL CRIMES
results from the taking of an intoxicating substance WITHOUT KNOWLEDGE of its nature, under the direct duress imposed by another, or pursuant to MEDICAL ADVICE while unaware of the substance’s intoxicating effect
infancy as a defense
CL –> under 7 years old, no liability; 7-14 yeas old rebuttable presumption that the child was unable to understand the wrongfulness of their acts; 14 and older, treated as adults
modern –> no child can be convicted of a crime until a stated age is reached, usually 13 or 14 (exception: Juvi courts)
non deadly force
person without fault may use as much force as the person reasonably believes is necessary to protect themselves from imminent use of unlawful force upon themself; NO DUTY TO RETREAT
deadly force as self-defense
can use if the person:
(1) is without fault;
(2) is confronted with unlawful force; and
(3) reasonably believes that they are threatened with imminent death or great bodily harm
majority rule and minority rule for duty to retreat with deadly force
Majority: no duty to retreat
Minority: duty to retreat UNLESS:
(1) the attack occurs within the victim’s own home
(2) the attack occurs while the victim is making a lawful arrest
(3) the assailant is in the process of robbing the victim
right of aggressor to use self-defense
they may use force in defense of themselves ONLY IF:
(1) they effectively withdraw from the confrontation and communicate their desire to the other side to do so; or
(2) victim of the initial aggression SUDDENLY ESCALATES the minor fight into a deadly altercation and the initial aggressor HAS NO CHANCE TO WITHDRAW
defense of others
D has the right to defend others if they reasonably believe that the person assisted has the legal right to use force IN THEIR OWN DEFENSE
need the reasonable appearance of the right to use force
generally does not need to be a special relationship between the defendant and the person on behalf of whom they acted
defense of a dwelling
person may use non deadly force in defense of their dwelling when they reasonably believe that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon their dwelling
CAN USE DEADLY FORCE only to prevent a violent entry and when the person reasonably believes that the use of force is necessary to prevent personal attack to themselves or another in the dwelling, or to prevent an entry to commit a felony in the dwelling
defense of property
deadly force may NEVER be used to defend property; reasonable non deadly force may be used to defend property in one’s possession from what they reasonably believe is an immediate, unlawful interference
can use force to regain possession of property that D reasonably believes was wrongfully taken ONLY IF they are in immediate pursuit of the taker
crime prevention
non deadly –> use to the extent that reasonably appears necessary to prevent a felony or serious breach of the peace
deadly –> use only if it appears REASONABLY NECESSARY to terminate or prevent a dangerous felony involving risk to human life
use of force to effectuate arrest - police officers
non deadly –> use if reasonably necessary
deadly –> reasonable only if it is necessary to prevent the felon’s escape AND the officer reasonably believes that the felon threatens death or serious bodily harm
bystander summoned to help police officer has the same authority to use force that officer does; good faith assistance is justified
use of force to effectuate arrest - private persons
same right to arrest as officer, except:
(1) privilege to use non deadly force if the crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime
(2) may use deadly force ONLY IF the person harmed was actually guilty of the offense for which the arrest was made
resisting arrest
majority –> non deadly force may be used to resist an improper arrest even if a known officer is making the arrest; deadly force may be used ONLY IF the person does not know that the person arresting them is an officer
duress
defense to a crime OTHER THAN INTENTIONAL HOMICIDE that D reasonably believed that another person would imminently inflict death or SBI upon them or a member of their family if D did not commit the crime
MPC –> allows duress as excuse for commission of a crime to protect property, assuming the value of the property outweighs the harm done to society by commission of the crime
necessity
person reasonably believed that the commission of the crime was necessary to avoid an imminent and greater injury to society than that involved in the crime; objective test, good faith is not sufficient
CL –> natural forces; MPC has abandoned this view
limitations on necessity
causing the death of another person is never justified
not available if D is at fault in creating the situation
mistake or ignorance of fact
relevant to criminal liability only if it shows that the defendant LACKED THE STATE OF MIND REQUIRED FOR THE CRIME
mistake or ignorance of fact: reasonableness
if offered to disprove specific intent, mistake need not be reasonable
if offered to disprove any other state of mind, MUST be reasonable
mistake or ignorance of the law
not a defense; if the reliance on an attorney negates a necessary mental state element, such reliance can demonstrate that government has not proved its case BRD
exceptions to necessity limitations
D has a defense if:
(1) statute proscribing their conduct was not published or made reasonably available prior to conduct;
(2) reasonable reliance on state or judicial decision; or
(3) reasonable reliance on official interpretation or advice
mistake or ignorance of the law may negate intent
ignorance or mistake must involve element of the crime, not the existence of a statute making it criminal
entrapment
occurs if the intent to commit the crime originated not with D, but officers; exists only if:
(1) criminal design originated with law enforcement officers; and
(2) D was not predisposed to commit the crime prior to contact by the government
officer encouragement and inducement = entrapment
entrapment is not available as a defense when…
“entrapped” by a private citizen
perjury
intentional taking of a false oath in regard to a material matter
subordination of perjury
procuring or inducing another to commit perjury
bribery
CL –> corrupt payment or receipt of anything of value for official action
Modern –> extended to nonpublic officials, either the offering of a bribe or the taking of a bribe may constitute the crime
compounding a crime
agreeing, for valuable consideration, not to prosecute another for a felony or to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon
misprision of a felony
CL –> failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony
Modern –> no longer a crime, or if it is, it requires some affirmative action in aid of the felon
